We have written about exhaustion of rights in the context of Brexit in the past on our sister website MacLachlan & Donaldson, and have been monitoring the news to keep you up to date on what will be happening in this area in the UK. As you may be aware, a consultation was conducted by the UK Government in 2021 on the UK’s future exhaustion of intellectual property rights regime.
Pre-Brexit goods placed on the market anywhere in the EEA, including the United Kingdom, could be moved freely around the European Union. One thing which made this possible was the doctrine of the “exhaustion of rights” in regards to Intellectual Property Rights (IPRs). Goods placed on the market anywhere in the EEA by the owner of the IPRs, or with their consent, “exhausted” the IPRs in those goods. This essentially meant that the purchaser of the goods could then move them anywhere within the EU and further deal with them without, except in very specific circumstances, interference by the IPR owner.
After the 1st January 2021, the position in the UK remained the same, that is, the IPRs in goods put on the market in the EEA were exhausted in the United Kingdom.
This position was not reciprocated by the EU who stated in their guidance that “the intellectual property right is not exhausted in the European Union if a good protected by that right has been lawfully put on the market of the United Kingdom.”
The UK Government sought the views of UK business as to what, if any, changes were required. The consultation ran for 12 weeks closing on 31st August 2021 and 150 responses from businesses, trade organisations and associations and private individuals. Over half of those who responded were from either the creative or health industries.
After the data was consider, the UK Government announced the results of the consultation on 18th January 2022 stating: –
“Unfortunately, there is not enough data available to understand the economic impact of any of the alternatives to the current UK+ regime. As a result, it has not been possible to make a decision based on the criteria originally intended. However, the government remains committed to exploring the opportunities which might come from a change to the regime.”
There is, therefore, to be no change to the UK’s exhaustion of rights regime in the immediate future, meaning that goods put on the market in the EEA can continue to be imported into the UK from the rest of the EEA without the consent of the owner of the IPR’s subsisting therein.
Should you have any questions about your IPRs, please contact us at info@ansons.co.uk and we can assist you in this regard.